Lord Verdirame: My Lords, I rise to move the first amendment in this group, Amendment 18 in my name, with the support of the noble and learned Lord, Lord Etherton. It must be read together with Amendment 29, which is also in this group. I shall speak to both of them together. These two amendments deal with the problem arising from the international law exception at paragraph 6 of the schedule.
A number of noble Lords highlighted this problem at Second Reading. In my speech, I referred to the opinion on the Bill by the Richard Hermer KC. I disagree with certain aspects of his opinion, but I agree with his analysis of the effect of paragraph 6 of the schedule. As he put it, a breach by the UK of an unincorporated treaty does not normally give rise to a claim under domestic law, but paragraph 6 of the schedule provides a domestic law foothold for such claims on a virtually unlimited basis. Unless the paragraph is amended or removed, the consequence will be that, contrary to the purposes of the Bill, local authorities, for example, will make their own determinations about UK compliance with international law obligations. If there is a dispute about the correctness of the position they have taken, that dispute will be decided by our courts.
We do not normally implement international law obligations on such an unspecified and broad basis. What we generally do is give effect to specific international law obligations in a manner that is clear, and thus consistent with the rule of law requirement of legal certainty and clarity. There are countless examples of this approach, from the Diplomatic Privileges Act 1964 to the Human Rights Act. In essence, what happens is that the implementing legislation identifies specific provisions in a treaty that are to be incorporated in domestic law, and sometimes those provisions will be listed in a schedule to the Act. The legislation will then create special rules or mechanisms that Parliament considers are required to give effect to those international law obligations. Examples include the declarations of incompatibility under the HRA and Foreign Office certificates under Section 4 of the Diplomatic Privileges Act.
Paragraph 6 of the schedule to the Bill does not do any of that. It purports to import the entirety of international law—potentially all treaties, whether incorporated or not—in every rule of customary international law, and invites decision-makers to consider for themselves whether their decisions will be compliant with any such international law. It is an inherently uncertain and unclear provision. Moreover, the international law obligations that might be relevant in this field are contested and unsettled.
This is particularly the case for international legal rules on the duties of third parties vis-à-vis a serious breach of peremptory rules of international law—most notably, Article 41 of the International Law Commission’s articles on state responsibility provides for three very general obligations for states faced with a serious breach of international law by another state. Those obligations are non-recognition, non-assistance and co-operation; but whether this rule entirely reflects customary international law and what it specifically requires of a state are not settled.
Public bodies would also have to determine for themselves whether they can avail themselves of the international law exception. That too requires a complex international law analysis. Whether an entity is a public body under domestic law is, of course, a question of domestic law, but whether the conduct of that body is attributable to the state on the international plain is a question of international law. Universities might be an example of public bodies under domestic law—we have been discussing that in previous debates on this Bill—but it is not the case that the conduct of a university would ordinarily be attributable to the state as a matter of international law.
The amendment that we propose would maintain the international law exception but add clarity to it by ensuring that regulations are adopted to include descriptions of considerations, including disregard thereof, to give effect to the UK’s obligations under international law. There may be a better formulation than the one we propose, but in essence the idea is to replicate the manner in which we have given effect to international law obligations that have not yet come into existence: for example, those that may arise in the future under decisions of the Security Council.
An example of this power is in the Sanctions and Anti-Money Laundering Act 2018. It creates the power to make regulations for purposes of compliance with  UN obligations and, more generally, for the purpose of compliance with any other international obligation. What happens in practice is that the Foreign Office lawyer, together with the Attorney-General, will consider the specific international law obligations that have arisen and then contribute to the drafting of clear, specific and precise regulations to give effect to those obligations. To be clear, the power that we are proposing will not, of course, replace the power in the Sanctions and Anti-Money Laundering Act. It would be in addition to that.
I understand that the noble Baroness, Lady Noakes, and the noble Lord, Lord Pannick, take the view that that power in paragraph 6 may not be needed and could simply fall away. Our proposal is a compromise that reflects the reality that this is a sensitive area and we thought that embedding in the Act a power to make regulations for purposes of complying with international law may, in this context, be useful. I beg to move.